United States of America v. Cockrell, 537 U.S. 322, 336 2003

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6659
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARION PROMISE, a/k/a Mario,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-98-7-MU)
Submitted: August 9, 2004 Decided: October 28, 2004
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marion Promise, Appellant Pro Se. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Nina Swift Goodman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Marion Promise, a federal prisoner, seeks to appeal the
district court’s order denying relief on his motion to file a
belated appeal from the court’s denial of his motion to extend the
one-year limitations period in 28 U.S.C. § 2255 ¶ 6 (2000), and the
order denying his motion filed under Fed. R. Civ. P. 59(e). The
orders are not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001).
We have independently reviewed the record and conclude
that Promise has not made the requisite showing. Although we find
that the district court’s reliance on the Federal Rules of
Appellate Procedure applicable to criminal cases is debatable or
wrong, see United States v. Hayman, 342 U.S. 205, 209 n.4 (1952)
(“Appeals from orders denying motions under Section 2255 are
governed by the civil rules applicable to appeals from final

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judgments in habeas corpus actions.”), Promise has failed to
demonstrate a substantial showing of the denial of a constitutional
right. Accordingly, we deny a certificate of appealability and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED

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